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  #41  
Old 07-15-2018, 7:53 PM
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Originally Posted by Spaffo View Post
In the past, I used 31VC for false info if a Vehicle Code investigation, and 148.9PC if non-VC.
Spaffo,

That's a pretty common practice, but keep in mind that 148.9 only convers lies about identity. VC 31 covers all instances of false information, but requires that the officer be performing duties under the VC.

But where a person gives the false identity of another, it's much better to use PC 529(a)(3) since it provides a felony penalty.
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Old 07-16-2018, 1:55 AM
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Originally Posted by RickD427 View Post
The short answer is "Yes." Children can be a source of information that can be used against their parents, just like any other witness can.

However, last year SB-395 did provide some additional protections to juveniles aged 15 and younger when they are subject to custodial police interrogation. Additionally, the California State Supreme Court created a requirement that juvenile subjects under 14 be assessed for their capacity to understand the criminal nature of their actions before they can be charged. Please refer to In re Gladys R. Most LE agencies apply the principles of In re Gladys R to also assess the maturity of young juvenile witnesses.
But those exceptions have nothing to do with the OP's question since the juveniles are not in custody and are not being accused of any criminal actions.
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  #43  
Old 07-16-2018, 2:09 AM
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Xerxes,

Best to go back a study the Fifth Amendment. Your understanding of it is far from correct. I'd start with the text of the amendment. Here is what is says:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Please note that there are many different clauses to the amendment. The one that many refer to as the "right to remain silent" appears in bold font above. Please note that this right is limited to "criminal cases." It is not a broadly held right. It's application has been greatly expanded through many court decisions, but not to the extent you have claimed as covering everything except your lawful name.

Nothing in the Fifth Amendment protects the "omission of truth."
What do you thing is going to happen to charges if a person is stopped for a traffic ticket and after identifying themselves they politely inform the officer that they wish to remain silent until they speak with counsel but the court finds that the officer compelled the person to provide information that became evidence in a criminal case? Assume that without its admission all charges would have to be dismissed.
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  #44  
Old 07-16-2018, 6:23 AM
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Originally Posted by MJB View Post
Why lie?
Why bite the hook on a fishing expedition?

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  #45  
Old 07-16-2018, 7:22 AM
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Why bite the hook on a fishing expedition?
Lying can be used as "reasonable suspicion". Cops become very good at detecting deception. Many go to specific training to become experts at detecting deception. So why make them want to look harder at you?
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What you believe and what is true in real life in the real world aren't necessarily the same thing. And what you believe doesn't change what is true in real life in the real world.
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  #46  
Old 07-16-2018, 7:24 AM
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What do you thing is going to happen to charges if a person is stopped for a traffic ticket and after identifying themselves they politely inform the officer that they wish to remain silent until they speak with counsel but the court finds that the officer compelled the person to provide information that became evidence in a criminal case? Assume that without its admission all charges would have to be dismissed.
How would a Officer specifically "compel" this make believe person to provide information which may become evidence in this make believe scenario?
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What you believe and what is true in real life in the real world aren't necessarily the same thing. And what you believe doesn't change what is true in real life in the real world.
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  #47  
Old 07-16-2018, 7:30 AM
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But those exceptions have nothing to do with the OP's question since the juveniles are not in custody and are not being accused of any criminal actions.
Yes, so as I have said before there is no law which prevents the Police from asking someone not in custody anything at any time.

This includes minors, passengers or anyone else..

The driver of a vehicle is "detained" but not in "custody" so that person can also be asked any questions the Officer can think of.

The driver, parent or whomever cannot also prevent the Officer from asking questions of anyone. Including minors or passengers.
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What you believe and what is true in real life in the real world aren't necessarily the same thing. And what you believe doesn't change what is true in real life in the real world.
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  #48  
Old 07-16-2018, 7:32 AM
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Use the general congressional hearing defense. "I don't recall". The Clintons stayed out of prison with that one.
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  #49  
Old 07-16-2018, 8:54 AM
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Originally Posted by RickD427 View Post
I'd strongly advise against this. There's a long explanation of the reasons why in the sticky tread on the subject of being stopped with guns in the car.

The short version is that the officer is pretty much guaranteed to note the difference between the question that was asked and the question that was answered. That's gonna invite all sorts of dialogue to resolve the difference and that's not gonna end well.
The better way to answer is tell the cop that you don't answer questions. His inquiry has nothing to do with speeding therefore you don't have to answer.
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Old 07-16-2018, 9:22 AM
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Originally Posted by SVT-40 View Post
How would a Officer specifically "compel" this make believe person to provide information which may become evidence in this make believe scenario?
Are you saying that there is no way a person can be compelled to answer unless they are under arrest or are you talking about the OP's hypo with his kids blowing the whistle on his guns?
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  #51  
Old 07-16-2018, 9:36 AM
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Are you saying that there is no way a person can be compelled to answer unless they are under arrest or are you talking about the OP's hypo with his kids blowing the whistle on his guns?
No, I'm asking how a Officer could "compel" someone to answer questions...

Asking a question of anyone is not "compelling" an answer.

Even when under arrest, how would a Officer "compel" anyone to answer questions?
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What you believe and what is true in real life in the real world aren't necessarily the same thing. And what you believe doesn't change what is true in real life in the real world.

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  #52  
Old 07-16-2018, 9:51 AM
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Originally Posted by Chewy65 View Post
What do you thing is going to happen to charges if a person is stopped for a traffic ticket and after identifying themselves they politely inform the officer that they wish to remain silent until they speak with counsel but the court finds that the officer compelled the person to provide information that became evidence in a criminal case? Assume that without its admission all charges would have to be dismissed.
Chewy,

You gotta remember that Fourth, Fifth and Sixth Amendment stuff is really complicated, and multi-dimensional. In addition to SVT-40's comments, which I think were well made, let me run with your hypothetical to illustrate.

Here we go. I see a driver that I suspect of DUI. He's driving well below the speed limit and has bounced off a couple of parked cars. I stop him and approach. I see the "This car insured by Smith and Wesson" and a closed pistol case on the back seat, with a padlock on it.

I speak to the driver and he immediately tells me that he does not wish to speak without consulting with his lawyer. Here's what I see happening:

1) My tape recorder starts recording.

2) I'll ask if he has any guns in the car and if he knows the reason I stopped him. To make my reply to your hypothetical work better, lets assume that he refuses to answer my question about the guns and that he thinks I stopped him for "scratching" a parked car as he drove by it.

3) I'll request him to give a preliminary breath test and to perform Field Sobriety Tests. He refuses both.

4) I'm allowed to consider the driver's refusal to respond to my gun question as an adoptive admission that there may be guns in the vehicle (Salinas). My observation of the locked gun case further supports that conclusion. IMHO (subject to a PC 1538.5 hearing) is that I have probable cause to search the gun case, not for illegal weapons, but in order to inspect the weapons under People v DeLong. (silence didn't help him here) Let's say that if find an unloaded pistol (which can be legally transported in a locked case) with a piece of tape over the serial number. I remove the tape, run the serial number and learn the weapon is stolen (we can cover the legality of this in another post).

5) I ask the driver why he has a stolen gun and he responds "I didn't steal it, I took it because the owner owed me money."

6) Off to jail we go.

Here's how I see your Fifth Amendment issues playing out:

1) The existence of a "Criminal Matter" under the Fifth Amendment is normally identified by the LEO, but it's also possible for the subject of an investigation to identify the potential of a "criminal matter." By claiming a right that only exists in a "criminal matter", the driver is putting me on notice that one exists.

2) I'm probably going to see the answers to my questions "Do you know why I stopped you" and "why do you have a stolen gun" held inadmissible in the prosecutions direct examination. They were taken following the defendant's claim of right to silence. But it's still useful to ask those questions. Defendant's often lie in court and the responses can still be admitted for purposes of impeachment when they do lie.

3) Most importantly. my criminal cases still go forward. The DUI and Hit and Run charges can be proven by my observations. I don't need the driver's statements. As to the gun stealing charge, follow-up investigation will reveal the person the gun was stolen from and their statements will show the suspect as the person taking it. I don't need the admission.
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  #53  
Old 07-16-2018, 11:46 AM
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What made the cop ask that question in the first place? That's what you might look at first.
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  #54  
Old 07-16-2018, 1:17 PM
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Originally Posted by RickD427 View Post
Chewy,

You gotta remember that Fourth, Fifth and Sixth Amendment stuff is really complicated, and multi-dimensional. In addition to SVT-40's comments, which I think were well made, let me run with your hypothetical to illustrate.

Here we go. I see a driver that I suspect of DUI. He's driving well below the speed limit and has bounced off a couple of parked cars. I stop him and approach. I see the "This car insured by Smith and Wesson" and a closed pistol case on the back seat, with a padlock on it.

I speak to the driver and he immediately tells me that he does not wish to speak without consulting with his lawyer. Here's what I see happening:

1) My tape recorder starts recording.

2) I'll ask if he has any guns in the car and if he knows the reason I stopped him. To make my reply to your hypothetical work better, lets assume that he refuses to answer my question about the guns and that he thinks I stopped him for "scratching" a parked car as he drove by it.

3) I'll request him to give a preliminary breath test and to perform Field Sobriety Tests. He refuses both.

4) I'm allowed to consider the driver's refusal to respond to my gun question as an adoptive admission that there may be guns in the vehicle (Salinas). My observation of the locked gun case further supports that conclusion. IMHO (subject to a PC 1538.5 hearing) is that I have probable cause to search the gun case, not for illegal weapons, but in order to inspect the weapons under People v DeLong. (silence didn't help him here) Let's say that if find an unloaded pistol (which can be legally transported in a locked case) with a piece of tape over the serial number. I remove the tape, run the serial number and learn the weapon is stolen (we can cover the legality of this in another post).

5) I ask the driver why he has a stolen gun and he responds "I didn't steal it, I took it because the owner owed me money."

6) Off to jail we go.

Here's how I see your Fifth Amendment issues playing out:

1) The existence of a "Criminal Matter" under the Fifth Amendment is normally identified by the LEO, but it's also possible for the subject of an investigation to identify the potential of a "criminal matter." By claiming a right that only exists in a "criminal matter", the driver is putting me on notice that one exists.

2) I'm probably going to see the answers to my questions "Do you know why I stopped you" and "why do you have a stolen gun" held inadmissible in the prosecutions direct examination. They were taken following the defendant's claim of right to silence. But it's still useful to ask those questions. Defendant's often lie in court and the responses can still be admitted for purposes of impeachment when they do lie.

3) Most importantly. my criminal cases still go forward. The DUI and Hit and Run charges can be proven by my observations. I don't need the driver's statements. As to the gun stealing charge, follow-up investigation will reveal the person the gun was stolen from and their statements will show the suspect as the person taking it. I don't need the admission.
I understand your thinking and am no expert on this, but should the claim of a right to remain silent and the exercise of the right to counsel is not admissible in court as an admission. Does that mean it cannot serve as the basis for a search is a thinner slice of bread that I have never seen a case about but I expect defense counsel would have a good argument.

The argument that claiming a right that enforcement believes only exists in a criminal matter just seems thin. A civilian is not expected to know what is or is not criminal in many circumstances and I suspect that many on the bench would not look kindly on penalizing a person for exercising rights.

Consider that while the language of the 5th refers to being a witness against oneself "in any criminal case", I doubt that the founders expected a lay person to know when a criminal case begins. Some will say when the jury is empanelled, others when charges are filed, and many when a person is taken into custody (whatever that means).

I think that enforcement sometimes confuses what triggers exclusionary rules with what is a person's constitutional rights. While an officer need not Mirandize a person until they are taken into custody less evidence be excluded as a deterrence to police misconduct, the person still has the right to remain silent if there is any possibility of a criminal action and there is that unless a person is granted full immunity, which isn't going to happen prior to an arrest. Is that "use" immunity? I digress.

As for your observation of the gun case, I think that was all you needed to open it per Terry v Ohio. You may also be correct about the refusal to state if there are firearms in the car due to the concern with officer and bystander safety under Terry. That an officer has a right to consider silence in these circumstances does not necessarily translate to one in which officer safety is not an issue. Say you have a suspicion that drugs are being sold out of an apartment. You knock at the door and a person identified as the tenant answers. You can ask him if he is selling drugs but if he answers that he has noting to say and wants to call an attorney are you claiming that was an admission?

As for impeachment, I am more familiar with civil and there as well things inadmissible are often admissible for impeachment. Still, have you any case law providing that one can be impeached by silence coupled with the exercise of the Constitution? I don't know that Salinas answered the question or did it merely hold that Salinas's pre-custodial silence was not protected under the 5th because the right was not claimed under the 5th and hence the court never gets to the question of whether silence would have been protected had Salinas coupled his claim to be silent with his right not to be a witness against himself?

Last edited by Chewy65; 07-16-2018 at 1:50 PM..
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  #55  
Old 07-16-2018, 3:57 PM
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Originally Posted by MJB View Post
Why lie?
Because people HAVE been detained, cited, and arrested for things that were actually LEGAL by cops know either didn't know the law, or figured that favorite cop saying "you may beat the rap, but you won't beat the ride" would cover any mistakes they made.

Some seem to think that "Ignorance of the Law" is a valid excuse for LEOs.

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Guns are legal. There’s nothing wrong with owning guns. Why is the presence of a legally possessed gun something that a responsible, law-abiding citizen should feel compelled to hide? Free your mind, and the rest will follow.
Keeping ones mind AND body free is a great reason to NOT answer any questions not legally required. Cops don't ask these questions because they want to get to know you better. They ask these questions in the hopes that you will allow them to search for something to DETAIN, CITE, and/or ARREST you for! Why would any rational person aid them in this effort?!?
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  #56  
Old 07-16-2018, 4:06 PM
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Originally Posted by Sniper3142 View Post

Keeping ones mind AND body free is a great reason to NOT answer any questions not legally required. Cops don't ask these questions because they want to get to know you better. They ask these questions in the hopes that you will allow them to search for something to DETAIN, CITE, and/or ARREST you for! Why would any rational person aid them in this effort?!?
I think you are denying a basic humanity to the LEO's. Yes they have motivations to find things, but they also are people who want to be reasonable. Unless we can maintain this reasonable relationship, then there really is no hope for society.

Not saying you should not be careful, but it's also an extreme to imagine that LEO is trying to screw you at every opportunity.
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Old 07-16-2018, 4:12 PM
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I doubt any cop cares about your hunting rifles in the trunk. they are more concerned with the loaded tech 9 in the door pocket that you could reach down and shoot him in the face with
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Old 07-16-2018, 4:28 PM
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Because people HAVE been detained, cited, and arrested for things that were actually LEGAL by cops know either didn't know the law, or figured that favorite cop saying "you may beat the rap, but you won't beat the ride" would cover any mistakes they made.

Some seem to think that "Ignorance of the Law" is a valid excuse for LEOs. !?
“Some” includes the SCOTUS.
https://thinkprogress.org/supreme-co...-d8bdb99987f1/

http://www.latimes.com/opinion/edito...014-story.html
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Old 07-16-2018, 4:33 PM
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How would " This is my wife's car, so don't think so but ya never know with her" with a big grin go down?
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Old 07-16-2018, 5:09 PM
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Originally Posted by Featureless View Post
What made the cop ask that question in the first place? That's what you might look at first.
I have been asked, "when is the last time I took drugs?," by a Sheriff's deputy. I said never (true) and then I asked him, "how was I driving or how do I look to ask such a question?," when I was pulled over for a speeding violation.

I agree most police wont ask about firearms in the vehicle, unless you give them a reason to.

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Why lie?
Not answering questions is not lying. Don't answer unasked questions or volunteer information.

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Originally Posted by Mayor McRifle View Post
Guns are legal. There’s nothing wrong with owning guns. Why is the presence of a legally possessed gun something that a responsible, law-abiding citizen should feel compelled to hide? Free your mind, and the rest will follow.
The police are not on your side. They get paid to enforce the law, be it unconstitutional laws or unjust laws or even laws they personally don't agree with. They will make the arrest. They don't care. On top of that, they are exempt in many cases and receive, "professional courtesy," in other cases.

They get to go home to their families and they don't have to think about or deal with the lives they potentially ruined. A felony arrest is a good thing for them.

Sadly, like us, many police don't truly know the laws and spread the same FUD that we hear here on the forum.

Why invite them to check your stuff? It isn't like if they find you are transporting your firearm wrong like they will be your friend and help you do it right. If they find you are doing wrong, there is a good chance you are going to jail, even if you made an honest mistake.


Back to the OP. Yes, children can and will be used against you. Taking your children from you is a tactic. Telling the children if they tell them what you did wrong that they can help you. All the things that they would find despicable if the roles were reversed.


At the end of the day, I would rather have the police than not. But there are things that could be drastically overhauled.
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Old 07-16-2018, 5:18 PM
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I don't think it matters what you say, as we seen in many instances some officers are gonna do what they want and come up with codes to justify
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Old 07-16-2018, 5:40 PM
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Originally Posted by Chewy65 View Post
I understand your thinking and am no expert on this, but should the claim of a right to remain silent and the exercise of the right to counsel is not admissible in court as an admission. Does that mean it cannot serve as the basis for a search is a thinner slice of bread that I have never seen a case about but I expect defense counsel would have a good argument.
Search and Seizure issues are pretty universally argued. The outcomes are often predictable, but there are a lot of surprises. In L.A. County nearly all criminal cases get disposed of at the PC1538.5 hearing. Once the admissibility of evidence issues are settled, the defendant either takes the deal or the D.A. drops the charges. I've never seen an instance where an officer admonished a defendant and where subsequent silence was admissible. The universal thought is that such silence was attributable to the admonishment and could not be taken as an admission. However, where there is no admonishment, and the subject is acting entirely on their own, Salinas would support that silence as an admission. That would have to be considered along with all other information to determine if sufficient PC were present for an arrest or search.

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The argument that claiming a right that enforcement believes only exists in a criminal matter just seems thin. A civilian is not expected to know what is or is not criminal in many circumstances and I suspect that many on the bench would not look kindly on penalizing a person for exercising rights.
All good points, but also countered by the belief that LEOs are entitled to act reasonably in the pursuit of criminal activity. Remember that the right not be a witness against oneself (the Fifth Amendment don't say nothing about "Right to Silence") is conditional on the existence of a criminal matter. If the LEO sees no criminal matter, and the subject claims a right that only exists in a criminal matter, then the LEO can reasonable conclude that there is a criminal matter somewhere in the picture and it's their job to investigate to find it.

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Originally Posted by Chewy65 View Post
Consider that while the language of the 5th refers to being a witness against oneself "in any criminal case", I doubt that the founders expected a lay person to know when a criminal case begins. Some will say when the jury is empanelled, others when charges are filed, and many when a person is taken into custody (whatever that means).
True. I'll let the JD's provide the law school answer on when the "criminal matter" attaches. My cut as an LEO is that it attaches when the subject reasonably forsees himself/herself making an appearance in criminal court (refer to the Ninth Circuit's opinion in U.S. v Bassignani)

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Originally Posted by Chewy65 View Post
I think that enforcement sometimes confuses what triggers exclusionary rules with what is a person's constitutional rights. While an officer need not Mirandize a person until they are taken into custody less evidence be excluded as a deterrence to police misconduct, the person still has the right to remain silent if there is any possibility of a criminal action and there is that unless a person is granted full immunity, which isn't going to happen prior to an arrest. Is that "use" immunity? I digress.
You make a good point about the difference between "Rights" and "Remedies." The exclusionary rule and the so-called Miranda "Rights" are actually remedies. However there is no "right to remain silent", there is only the right to not be a witness against onseself in a criminal matter. I'll agree the terms are highly synonymous, but they're not the same.

The law school answer is that a grant of "Use Immunity" is sufficient to defeat the Fifth Amendment's witness clause, but "Use Immunity" is kinda like the widgets discussed in Business Schools. They exist in academic thought, but don't really exist in reality. Prosecutors will rarely grant Use Immunity. They need to ensure that action will not affect other prosecuting authorities and is often akin to opening Pandora's box. Additional, even when Use Immunity is granted, and LEOs find an independent path to prosecution, the defense tends to go nutso and the court calendar overflows with hearing requests. What usually happens in the real world is that a defendant will be arm-twisted into wanting to provide information (usually by a plea bargain or the consideration of collateral charges) and will provide that information while sitting in a jail interview room with his attorney to an investigator who makes a point not to provide a Miranda admonishment. The net effect is that statements made will be excluded from direct use in court and without need of immunity.

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Originally Posted by Chewy65 View Post
As for your observation of the gun case, I think that was all you needed to open it per Terry v Ohio. You may also be correct about the refusal to state if there are firearms in the car due to the concern with officer and bystander safety under Terry. That an officer has a right to consider silence in these circumstances does not necessarily translate to one in which officer safety is not an issue. Say you have a suspicion that drugs are being sold out of an apartment. You knock at the door and a person identified as the tenant answers. You can ask him if he is selling drugs but if he answers that he has noting to say and wants to call an attorney are you claiming that was an admission?
Actually, Terry would not allow me to open the gun case. Terry restricted the pat down to outer clothing only. Michigan v Long extended the Terry theory to vehicle interiors, but only as to areas easily reached. I would have a hard time describing a locked gun case as being "easily reached." I framed my hypothetical reply to avoid any issues with Terry v Ohio or Michigan v Long. I was focusing solely on non-officer safety issues. The legal standing for the officer to open the locked gun case was to conduct the "e-Check" (refer to PC 25850(b)) - Formerly 12031(e)) of the firearms believed to be inside.

As to your question about the suspected dope dealing tenant, yes I would consider their silence as an "adoptive admission." Please refer to the California Court of Appeals decision in People v Bowman where they consider nearly identical facts and found the silence to be an admission.

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Originally Posted by Chewy65 View Post
As for impeachment, I am more familiar with civil and there as well things inadmissible are often admissible for impeachment. Still, have you any case law providing that one can be impeached by silence coupled with the exercise of the Constitution? I don't know that Salinas answered the question or did it merely hold that Salinas's pre-custodial silence was not protected under the 5th because the right was not claimed under the 5th and hence the court never gets to the question of whether silence would have been protected had Salinas coupled his claim to be silent with his right not to be a witness against himself?
I've never seen a defendant's silence used to impeach testimony. I've only seen it used to support legal standing for a search or an arrest. The impeachment issue that I raised was the use of voluntary statements made outside the scope of the Miranda remedy. While such statements are excluded from a prosecution's main case. They are appropriately used to impeach a defendant's testimony once they chose to lie to the court. Please refer to California Court of Appeals decision in People v Pilster and also the Ninth Circuit's decision in California Attorneys v Butts (The Butts case primarily clarifies that the impeachment statements have to be voluntarily made).
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Old 07-16-2018, 8:49 PM
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Originally Posted by RickD427 View Post
You gotta remember that Fourth, Fifth and Sixth Amendment stuff is really complicated, and multi-dimensional...
If you're having issues seeing what he did with his hypothetical, here's a piece from last year...

Can the police retaliate against a citizen for refusing to answer police questions?

Quote:
In a new case, Alexander v. City of Round Rock, the U.S. Court of Appeals for the 5th Circuit considers the following question: If the police pull over a driver and the driver indicates he will refuse to answer any police questions, does it violate the Constitution for the police to retaliate against the driver to punish him for refusing to answer their questions?

As I read the 5th Circuit’s decision, the court rules that (a) retaliation against the driver for refusing to answer police questions may involve acts that violate the Fourth Amendment, (b) retaliation for refusal to answer police questions doesn’t clearly violate the First Amendment, and (c) such retaliation doesn’t violate the Fifth Amendment.

The court’s Fifth Amendment ruling strikes me as missing some complications, and I thought I would blog about why I think it’s a tricky issue...

Alexander seems to have invoked his right properly, and at least according to the complaint he was punished for doing so. It may be that the Fifth Amendment has nothing to say with that: As long as Alexander wasn’t prosecuted, maybe the government can retaliate against him for not speaking so long as it does so within Fourth Amendment bounds in terms of detaining him and using force. Maybe the idea that you have a “right to remain silent” is itself inaccurate, as you have much more limited rights than such a broad phrase would suggest. But my sense is that there are difficult issues lurking in the court’s Fifth Amendment ruling that didn’t come out in the short passage in the opinion.

I’m not sure any of my uncertainty changes the ultimate result in this case. No matter how Alexander’s Fifth Amendment claim is characterized, I gather that retaliation wouldn’t violate clearly established Fifth Amendment law under prevailing qualified-immunity standards. But it struck me as an important set of issues nonetheless.
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Old 07-16-2018, 9:11 PM
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Originally Posted by TrappedinCalifornia View Post
If you're having issues seeing what he did with his hypothetical, here's a piece from last year...

Can the police retaliate against a citizen for refusing to answer police questions?
I'm sorry, but I'm not seeing the connection. I have not previously read the Alexander case discussed in the linked article. It's a Fifth Circuit case and not binding here. From the article's summary, the issues seem to be that Alexander was claiming retaliation for his silence (specifically being proned out and having a boot or knee placed on his neck mashing his face into the concrete).

That's quite different from what we're discussing in this thread. Our discussion has revolved around whether LEOs can infer criminal conduct from a subjects silence. There's no "Boot to Neck" or "Face Mashing" involved in our discussion.

When a LEO infers criminal conduct from a subject's actions, that is not necessarily retaliatory. It is much more likely that the LEO is seeking to identify criminal activity. That's what we pay them to do. For the record, if the facts show that the officer's motivations were to retaliate for the exercise of silence, then the officer may be subject to sanctions. On the other hand, if the officer's motivations were to identify criminal activity then his/her conduct is commendable.

You can't jump to the conclusion that the motivation was retaliatory.
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Old 07-16-2018, 11:30 PM
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I'm sorry, but I'm not seeing the connection. I have not previously read the Alexander case discussed in the linked article. It's a Fifth Circuit case and not binding here.
I noted the earlier cases were 5th Circuit. While they may not be binding in California, they do represent a mindset in a portion of the Judiciary, specifically at the Circuit Court level. Just because it hasn't reached SCOTUS doesn't mean it is irrelevant.

There's also the fact that the individual asking for confirmation that it's a 'criminal offense' to lie to a police officer is located in Midland, Texas, part of the 5th's jurisdiction.

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Originally Posted by RickD427
From the article's summary, the issues seem to be that Alexander was claiming retaliation for his silence (specifically being proned out and having a boot or knee placed on his neck mashing his face into the concrete). That's quite different from what we're discussing in this thread. Our discussion has revolved around whether LEOs can infer criminal conduct from a subjects silence. There's no "Boot to Neck" or "Face Mashing" involved in our discussion.
You may, rightly, take issue with the word 'retaliate.' That's the plaintiff's descriptor; one used by the author of the post linked to. But, go back and 'understand' in terms of how some of the people are responding in this thread. It my not be an actual, physical 'boot to the neck' at issue; but, metaphorically, it is being perceived that way by many. Think about it in terms of what you said, just in your hypothetical; not as a police officer, but as a civilian...

Quote:
Originally Posted by RickD427
...he immediately tells me that he does not wish to speak without consulting with his lawyer...

I'm allowed to consider the driver's refusal to respond to my gun question as an adoptive admission that there may be guns in the vehicle (Salinas)...

By claiming a right that only exists in a "criminal matter", the driver is putting me on notice that one exists...

I'm probably going to see the answers to my questions "Do you know why I stopped you" and "why do you have a stolen gun" held inadmissible in the prosecutions direct examination. They were taken following the defendant's claim of right to silence. But it's still useful to ask those questions. Defendant's often lie in court and the responses can still be admitted for purposes of impeachment when they do lie...

Most importantly. my criminal cases still go forward. The DUI and Hit and Run charges can be proven by my observations. I don't need the driver's statements. As to the gun stealing charge, follow-up investigation will reveal the person the gun was stolen from and their statements will show the suspect as the person taking it. I don't need the admission...
Okay. You did your job. Legally and even 'logically,' you can hold yourself to have been 'correct.' But, think of it from the other side; i.e., especially people who aren't necessarily guilty of any, actual crime.

The 'suspect' invokes what they honestly believe to be their right. You then claim exercise of that perceived right means you, as the officer, can use that to assume guilt of some potential, as yet to be established, 'crime.' So, immediately, the 'suspect' is in 'trouble' whether they do or do not speak.

You then compound this with the idea that by exercising a right they might not have the education/experience to understand is applicable in a 'criminal matter,' you, as the officer, are allowed to 'assume' a criminal matter exists. That's a nuance that the average person is unlikely to be aware of. Further, it is a sign of the very 'adversarial' relationship many perceive as pre-existing.

Then, you claim that any answer they do provide is likely to be held as inadmissible as a 'violation' of the right they weren't entitled to; at least in the manner they thought. But, it's still potentially 'useful' information in their 'prosecution.'

Yet, either way, you don't "need" their admissions > yet, now, they've just heard they may not have a 'right' not to make them > yet, such statements will likely be inadmissible > yet, they might be admissible IF > yet, you, as the officer, are allowed to 'assume' they were potentially in the process of committing a crime because they wouldn't say anything > in your hypothetical, they had committed a 'crime' to begin with (DUI and Hit & Run) > so, they should have been able to invoke their right to remain silent > yet, their silence allows you to...

Can you see how this might be not only confusing, but create a sense of 'boot to the neck' among the average citizen? It's about the perception of who is holding the 'power' in this. If they speak, they're in trouble. If they don't speak, they're in trouble. A lose-lose. That means, as I said earlier...

Quote:
Originally Posted by TrappedinCalifornia
...your attitude and the officer's sense of things can and does contribute to the outcome...
Rightly or wrongly, many perceive interactions with police as an 'adversarial encounter.' While curbside lawyers are unlikely to achieve what they want and, as you are explaining, typically don't truly understand the limitations of their rights, the entire premise of the thread is that your "innocent children" might be used "against you" by a police officer in building a case. This has turned into a discourse over the limits of your 5th Amendment rights; rights many posters feel are 'absolute' and that you have shown are not.

Quote:
Originally Posted by RickD427
You seem to think that your right to decline to respond is rooted in the Fifth Amendment. It isn't. It's rooted in the officer's lack of legal standing to compel a reply. Your understanding is backwards.
This is what the article linked to also demonstrates. The central question or issue of the case is... If the police pull over a driver and the driver indicates he will refuse to answer any police questions, does it violate the Constitution for the police to retaliate against the driver to punish him for refusing to answer their questions?

Don't get lost or defensive over the word 'retaliate.' Remember, the premise presented in the opening stanza of the case is...

Quote:
Officer Marciano Garza pulled over Lionel Alexander in a hotel parking lot after observing what he perceived as suspicious activity. Alexander refused to answer Garza’s questions.
Every thing up until that point matches your hypothetical. You observed activity you deemed 'suspicious' and the 'suspect' refused to answer your questions. You and the officers in the case, then inferred or could infer criminal conduct. As you say...

Quote:
Originally Posted by RickD427
When a LEO infers criminal conduct from a subject's actions, that is not necessarily retaliatory. It is much more likely that the LEO is seeking to identify criminal activity.
Fine. That's the job, at least in an abstract, theoretical sense. However, from that point forward, you are then building a potential, criminal case, where your assumptions, observations, conduct, et al. are then colored by that overarching premise; i.e., that 'criminal conduct' is suspected. While that is 'commendable' and what you're 'paid to do,' it feeds the adversarial relationship for, now, the 'suspect' is placed on the defensive; whether there has been actual criminal conduct or not.

The problem? You're saying, again, rightfully, that their rights are more limited than they think, that whatever action they take vis a vis their perceptions of those rights is potentially going to be used AGAINST them, and that you, as the one who gets to make the decision over how their Life will now proceed is subject to a mindset that criminal conduct may be involved and it's "my job" to build a case which will hold up.

If you read the case, you'll find that all the legal arguments you've presented are, in fact, present and more. In fact, the Court ultimately decided that his 5th Amendment rights weren't violated vis a vis the very limitations you cite...

Quote:
...As this court has noted on multiple occasions, “[a]n individual’s Fifth Amendment right against self-incrimination is implicated only during a custodial interrogation.” ... Indeed, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.” ... In other words, the Fifth Amendment protects a defendant from being coerced into making an incriminating statement, and then having that statement used against him at trial. But Alexander was never tried. His Fifth Amendment right against self-incrimination was not violated...
Although, other rights were likely violated. Such violations are something which are sorted out LATER, in court; meaning the individual is still out the stop, arrest, booking, time in jail, bail, expense of an attorney, time commitments, etc. based on the officer's perception of things and how the officer feels in terms of their ability to build a case. Or, as the Court put it in the case...

Quote:
We stress at the outset that, because this appeal is from a grant of a motion to dismiss, all of the following facts are drawn exclusively from the allegations in Alexander’s complaint...

We have only heard one side of the story. After discovery is complete, the district court may well correctly determine that none of Alexander’s claims can survive summary judgment. But at the motion to dismiss stage, we are bound to accept his allegations as true. And on the facts alleged, Alexander has stated several constitutional claims.
The officer has done his/her job; maybe even commendably. The DA gets to do his/her job. The court gets to do its job. All on the taxpayer's dime. All get to go home and sleep at night, secure in the knowledge that they did their jobs and the system 'works.'

Meanwhile, the 'suspect,' whether they've committed an actual crime or not, is... where? They've discovered the rights they thought they had may or may not be what they thought and may or may not be directly relevant to the actual outcome. They've discovered they hold very little, if any, actual 'power' over their lives once a police officer's attention has been gained. They've discovered the 'expense' of seeking Justice; all the while knowing that the officer, the DA, et al. are receiving their paychecks for "doing their jobs commendably."

This is why people on this thread are... incredulous. It's also part of the problem in how you are attempting to explain things. You are doing so in the abstract, theoretical sense of what an officer's job is and rights are, while simultaneously noting what a suspect's rights aren't. Yet, when a real world example is put forth, addressing many of the same, theoretical issues, you immediately go on the defensive over the extent of the officers' physical conduct rather than how that conduct is being perceived as 'similar' in terms of the overall outcome - detention, arrest, etc.

This is precisely why I 'bowed' out of attempting to answer "What If?" questions. There are, at least, four perspectives in any encounter between officer and civilian/suspect. The officer's. The civilian/suspect. Actual observers. Players in the aftermath; i.e., officer's supervisor, DA, judge, jury, media, public. The 'answer' (and its 'correctness') to the "What If?" question is very much dependent upon which perspective one takes.

In the case linked to, the plaintiff (suspect) is claiming it is retaliatory. The officers are claiming it was commendable and justified. The court is saying it was, potentially, a bit of both. Which is precisely where you are at in your explanation attempt. You are explaining what is possible and 'correct,' legally. Others are reacting based on their perceptions and a desire to avoid 'consequences' they may or may not actually be 'deserving' of; which is why they seem to be searching for the "What If?" panacea that does not and can not exist.

Last edited by TrappedinCalifornia; 07-16-2018 at 11:42 PM..
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Old 07-17-2018, 5:53 AM
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I think the fundamental stumbling block in these discussions is that if you say, “Yes. Unloaded, locked, and in the trunk” the law/case law that establishes that the officer can then search your trunk and inspect any weapons (to include unlocking firearms cases ) “to make sure they’re unloaded” is a real slap in the face of the fourth amendment.
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Old 07-17-2018, 8:57 AM
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I think the fundamental stumbling block in these discussions is that if you say, “Yes. Unloaded, locked, and in the trunk” the law/case law that establishes that the officer can then search your trunk and inspect any weapons (to include unlocking firearms cases ) “to make sure they’re unloaded” is a real slap in the face of the fourth amendment.
Champu,

Well stated, and accurate.

But that being the case, efforts of yourself and folks similarly inclined should be to seek repeal or a finding of unconstitutionality of PC section 25850(b). Don't fault the LEO for doing his/her job in accordance with the law.

You gotta remember that what you think the Fourth Amendment provides, and what I think the Fourth Amendment provides are pretty meaningless. It's what the courts consider that the Fourth Amendment provides that counts.
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Old 07-17-2018, 9:35 AM
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If a cop asks me if I have XYZ in my car I’ll answer truthfully but I’ll be doing my best to give an outward image that I don’t have XYZ in my car and I’m not the type of person to have anything to do with XYZ.

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Old 07-17-2018, 2:31 PM
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seems like an officer can do most anything they like if they state on the report they observed suspicious behavior. hard for a person to prove otherwise.
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Old 07-17-2018, 3:49 PM
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seems like an officer can do most anything they like if they state on the report they observed suspicious behavior. hard for a person to prove otherwise.
Which would be an all too common abuse of authority.

Which is why you ALWAYS record all interaction with LEOs!!!
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